14.4 Damages, Defenses & Tort Practice

Tort remedies and defenses determine what an injured plaintiff actually recovers — and whether a case is worth filing at all. Personal injury work is among the most paralegal-intensive areas of law, so the NALA Certified Paralegal (CP) exam tests both the doctrine and the practice mechanics.

Damages

Compensatory damages aim to make the plaintiff whole and come in two categories:

• Special (economic) damages — quantifiable out-of-pocket losses: past and future medical expenses, lost wages and lost earning capacity, and property damage. They must be pleaded and proven with specificity — bills, pay stubs, and expert projections.
• General (non-economic) damages — inherently non-monetary losses: pain and suffering, emotional distress, disfigurement, loss of consortium (a spouse's claim for loss of companionship, society, and services), and loss of enjoyment of life.

Under the collateral source rule, benefits the plaintiff receives from independent sources (health insurance, disability payments) do not reduce the defendant's liability, though many states have modified or abolished the rule by statute. Plaintiffs also have a duty to mitigate — an injured person cannot recover for harm he could reasonably have avoided, such as by refusing obviously necessary surgery.

Punitive (exemplary) damages punish and deter conduct that is malicious, fraudulent, or in reckless disregard of others' rights. They are not available for ordinary negligence. The Supreme Court's due-process guideposts from BMW of North America v. Gore (1996) and State Farm v. Campbell (2003) weigh the reprehensibility of the conduct, the ratio of punitive to compensatory damages (single-digit multipliers will comport with due process in most cases), and comparable civil or criminal penalties.

Multiple Defendants

Joint and several liability applies when two or more defendants cause a single indivisible injury: each is liable for the entire judgment, and the plaintiff may collect it all from any one defendant (though only one full satisfaction is allowed). A defendant who pays more than his share may seek contribution from co-defendants — pro rata in some states, comparative-fault shares in others. Indemnity shifts the entire loss from one party to another, typically where one party's fault was passive (a retailer held strictly liable for a manufacturer's defect) or by contract. Many states have reformed joint and several liability, adopting several liability (each defendant pays only his comparative share) for non-economic damages or below a fault threshold — always check the governing statute.

Plaintiff's-Fault Defenses

Assumption of risk has two forms. Express assumption — a signed waiver or release — bars claims for risks within its scope, subject to public-policy limits (releases for intentional misconduct or gross negligence often fail). Implied assumption requires that the plaintiff knew the risk, appreciated its magnitude, and voluntarily encountered it; in most comparative-fault jurisdictions, implied assumption (other than the 'primary' no-duty form, as when a spectator sits behind a baseball dugout) merges into the comparative-fault analysis.

Immunities

Governmental (sovereign) immunity historically barred suits against the government. The Federal Tort Claims Act (FTCA) of 1946 waives federal immunity for negligent acts of federal employees acting within the scope of employment, but retains exceptions — most importantly the discretionary function exception (no liability for policy-level planning decisions), plus intentional-tort carve-outs and a requirement that the claimant first file an administrative claim (Standard Form 95) within two years of accrual. State and local governments have their own tort claims acts, often with short notice-of-claim deadlines (sometimes 90-180 days). Charitable immunity has been abolished or heavily limited in nearly all states. Intra-family immunities (spousal, parental) have likewise been largely eliminated.

Statutes of Limitation and Repose

A statute of limitations sets the deadline to file suit after a claim accrues — personal injury periods commonly run one to six years by state (two and three are most common). The discovery rule delays accrual until the plaintiff knew or should have known of the injury and its cause — vital in latent-injury and medical-device cases. Tolling pauses the clock for minority, incapacity, or the defendant's fraudulent concealment or absence from the state. A statute of repose is harsher: it runs from a fixed event (date of product sale, substantial completion of construction) and can extinguish a claim before any injury occurs, with no discovery-rule softening.

The Paralegal's Role in Personal Injury Practice

Paralegals do this work under attorney supervision; giving legal advice on settlement value or signing pleadings would be the unauthorized practice of law.

Common exam traps: (1) mixing up special and general damages — lost wages are special; pain and suffering is general; (2) assuming comparative negligence bars recovery at 50% in pure jurisdictions — it never bars; (3) forgetting the FTCA's mandatory administrative-claim prerequisite; (4) treating a statute of repose like a limitations period subject to tolling; (5) believing punitive damages are available for ordinary negligence.